See PERMANENT TOTAL
DISABILITY Continuing medical benefits
See SECOND INJURY FUND
Authority to reimburse self-insured employer for overpayment of
time-loss compensation
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CRELLA J. BOUDON |
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DOCKET NOS. 98 17459 & 99 22359 |
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CLAIM NO. T-380016 |
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DECISION AND ORDER |
APPEARANCES:
These appeals were filed by the self-insured employer, The Boeing Company, with the Board of Industrial Insurance Appeals on August 24, 1998, regarding orders of the Department of Labor and Industries dated June 25, 1998.
With respect to Docket No. 98 17459, the June 25, 1998 Department order confirmed that, by separate order, the Department had placed the claimant on the pension rolls as a totally permanently disabled worker effective July 20, 1998, that the permanent partial disability caused by the industrial injury of June 19, 1989, would have resulted in an award equal to $36,000 and that, when the disability was combined with and superimposed upon prior disabling conditions, the classification of total permanent disability resulted. Accordingly, the Department ordered the self-insured employer to submit the sum of $36,000 made payable to the Department of Labor and Industries and determined that the balance of the pension reserve required to pay the worker's pension would be charged against the second injury account. REVERSED AND REMANDED.
With respect to Docket No. 99 22359, the June 25, 1998 Department order stated that the claimant had been classified as permanently totally disabled and placed on the pension rolls [2] effective July 20, 1998, and authorized treatment to continue for the claimant's anti-depressant medication and medical monitoring thereof. REVERSED AND REMANDED
The self-insured employer's Notice of Appeal specifically references both Department orders issued in this claim on June 25, 1998. The two Department orders have separate subject matters. One awards a pension and authorizes ongoing payment for medical treatment and medication associated with the claimant's psychiatric condition. That appeal was not specifically docketed. The second order directs second injury fund relief. That appeal was granted and assigned Docket No. 98 17459. At no point during the hearing process did the parties or the representatives of the Board notice the failure to assign a docket number to the first appeal. The jurisdictional facts relative to both appeals were stipulated into the record on May 3, 1999. 5/3/99 Tr., pp. 20-21. In addressing the Department's Petition for Review, the Board recognized the docketing error. By order dated December 6, 1999, the Board assigned the overlooked appeal Docket No. 99 22359. Because the parties proceeded with hearings as though the appeal in Docket No. 98 17459 had been granted from both Department orders of June 25, 1998, the appeals will be treated as having been consolidated for hearing. The complete record of proceedings in Docket No. 98 17459, including the May 3,1999 stipulation to the accuracy of the jurisdictional history prepared by the Board, is deemed to be the record in the appeal assigned Docket No. 99 2359.
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the Department to a Proposed Decision and Order issued on August 31, 1999, in which the order [sic] of the Department dated June 25, 1998, was reversed and remanded to the Department with directions to issue an order declaring the claimant a permanently totally disabled worker; determining that the self-insured employer was entitled to second injury fund relief as of June 1, 1996; directing that the self-insured employer [3] recoup from the second injury fund any benefits paid by the employer to the claimant after June 1, 1996; declaring that any further medical/psychiatric benefits payable in this matter should be paid from the second injury fund and not by the individual self-insured employer; and to take such further and necessary action as is indicated by the law and the facts of this case.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and the rulings are affirmed.
With respect to Docket No. 98 17459, the Department asks the Board to determine that the claimant was permanently totally disabled as of July 20, 1998, as opposed to the June 1, 1996 date determined in the Proposed Decision and Order. We agree with the industrial appeals judge that the Department 's July 20, 1998 date is incorrect. However, for the reasons articulated below, we find the actual effective date to be January 13, 1998.
With respect to Docket No. 99 22359, the Department requests that the Board direct the self-insured employer to bear the expense of the claimant's ongoing psychiatric medication and medical monitoring. As discussed below, we agree that is the correct outcome.
The parties agree that Ms. Boudon is permanently and totally disabled and that the self-insured employer is entitled to second injury fund relief. Where they disagree is on the effective date of the claimant's award for permanent total disability and the self-insured employer's entitlement to second injury fund relief. The Department asserts that a worker is not permanently and totally disabled until it makes that determination and issues an order to that effect. Further, the Department maintains that it cannot issue an order classifying a worker as permanently and totally disabled until: (a) the worker's medical condition is fixed; (b) vocational efforts have been completed; and (c) after the self-insured employer submits the claim to the Department for closure. [4] The Department also argues that it is appropriate to post-date the effective date of pension benefits for administrative convenience.
The Board has addressed this issue on a number of occasions, and has designated one of its decisions as a significant decision under RCW 51.52.160. In re Harold J. McCormack, BIIA Dec., 90 3187 (1992). In McCormack, we held that the effective date for placing the claimant on the pension rolls and for charging the balance of the pension reserve against the second injury fund was the date the claimant became permanently and totally disabled. We rejected the effective date selected by the Department, which was nearly one month after the date of the Department order placing the claimant on the pension rolls. In re Larry N. Sherwood, Dckt. Nos. 92 1875 and 92 1879 (January 20, 1994); and In re Roger D. Neuman, Dckt. No. 97 7648 (July 9, 1999).
In Sherwood, we concluded that the claimant was entitled to permanent total disability benefits when his condition was both medically stable and when he was permanently precluded from performing reasonably continuous gainful employment. We explained that:
Receipt of total permanent disability benefits involves questions about whether an injured worker can return to the work force given any restrictions on physical functioning. Frequently these questions cannot be answered until well after an injured worker's condition is fixed. The reason that the determination of whether someone is totally permanently disabled cannot turn on the date of medical fixity is because frequently there are periods after medical fixity has been achieved when the worker is in vocational retraining programs. Such is the case with Mr. Sherwood. His vocational efforts continued well after the date that his condition was medically fixed. While his efforts to become re-employable eventually proved to be unsuccessful, he cannot be considered to be totally permanently disabled until such time as those efforts are shown to have failed in returning him to gainful employment.
Sherwood at 3-4.
In Neuman, we held that an injured worker is permanently totally disabled effective the date the worker is both medically fixed and, as a vocational matter, is demonstrably permanently unable to be gainfully employed on a reasonably continuous basis. The date the claimant becomes so [5] disabled is the date the claimant is entitled, by law, to permanent total disability benefits. It is also the date the self-insured employer is entitled to second injury fund relief for cases in which the claimant's disability is due to the combined effects of the industrial injury and the claimant's pre-existing, disabling conditions. We noted the proper focus in identifying the effective date for benefits and second injury fund relief is on the date that the worker is permanently totally disabled as a matter of fact. We specifically rejected the date of medical fixity, the date the employer submits documentation and a request to the Department to make a determination about permanent total disability, and the prospective date selected by the Department after making its determination.
Unlike the claimants in Neuman and McCormack, Ms. Boudon was not actively engaged in a specific program of vocational training when her physical and mental conditions became medically stable. According to the stipulated record, for purposes of permanent total disability Ms. Boudon's physical condition was medically stable as of June 1, 1996, and her mental health condition was stable as of February 24, 1997. The self-insured employer submitted the claimant's file to vocational consultant Paul Green on December 11, 1997. In addition to the records provided by the self-insured employer, Mr. Green sought information on medical fixity from treating orthopedist, Dr. St. Elmo Newton, III. Mr. Green received that information in a letter dated January 13, 1998. At some point, Mr. Green formed the opinion that vocational efforts would not benefit Ms. Boudon. However, he did not document that opinion in writing until he drafted a written report on January 19, 1999, after this case was on appeal. In that report, he expressed the opinion that Ms. Boudon was permanently totally disabled effective June 1, 1996.
The industrial appeals judge determined that Mr. Green's efforts on behalf of Ms. Boudon consisted solely of an employability assessment rather than active vocational training or placement efforts. He then concluded that Ms. Boudon did not receive vocational services during the time the outcome of her claim awaited Mr. Green's report. Relying on his interpretation of the McCormack, [6] decision, the industrial appeals judge set the effective date of the pension at the June 1, 1996 date on which Ms. Boudon's doctor found her medical condition stable. This analysis did not take into account the stipulation that Ms. Boudon's mental health condition was not medically stable until February 24, 1997. In any event, neither of those dates addresses the vocational determination that Ms. Boudon was unemployable. As we stated in Neuman:
A permanent total disability determination is a combination of medical and vocational fixity, and should be based on the facts then in existence. A retroactive determination should be based on the date medical and vocational experts arrived at the determination that the worker was permanently totally disabled. The date of permanent total disability should not be set at the date of initiation of medical or vocational endeavors which . . . are intended to reduce a worker's disability or enhance the worker's ability to return to work, even if the courses are later determined to have been in vain. So long as the medical or vocational services were initiated as reasonably intended to reduce disability, they remain proper and necessary to their conclusion.
Neuman at 12.
An employability assessment is the first step in every vocational effort. Any vocational effort in a case where a pension is ultimately awarded is going to have proven fruitless at some point. The determination must, nonetheless, be made. In this case the self-insured employer, for unknown reasons, did not even initiate the vocational assessment process until December 1997. There is no indication in the record before us that Mr. Green formed his opinion that Ms. Boudon was totally permanently disabled before he drafted his written opinion on January 19, 1999. That date, however is nearly seven months after the June 25, 1998 order on appeal. From the record, we can reasonably infer that Mr. Green had the necessary information to complete his employability determination as of his receipt of Dr. St. Elmo Newton, III's January 13, 1998 letter. Accordingly, January 13, 1998 is the date on which medical and vocational experts were in agreement that Ms. Boudon was totally permanently disabled. That is the effective date that Ms. Boudon should be [7] placed on the pension rolls and the self-insured employer should be eligible for second injury fund relief.
With respect to Docket No. 99 22359, the Director determined that Ms. Boudon's case is one in which it was appropriate to make a discretionary award of ongoing medical benefits after a pension award. RCW 51.32.160. The Proposed Decision and Order directed that the cost of the post-pension medical benefits should come from the second injury fund. There is no case directly on point, however the Department's Petition for Review points out that the Board has previously determined the limited nature of the relief provided by the second injury fund in the significant decision In re Raymond Mitchell, BIIA Dec., 17, 962 (1963). In that case, a state fund employer requested second injury fund relief for its experience rating for the cost of a pension to the extent it exceeded the accident cost of the worker's leg injury. The employer further requested that the accident cost be reduced by a proportionate share of the time loss compensation paid to the claimant before the pension award. We allowed the relief as to the pension, but rejected the request for relief as to apportionment of the cost of time loss compensation, noting that:
The second-injury account statute . . . comes into play only when a workman is classified as totally, permanently disabled, and it seems apparent that its entire intent and purpose is to apportion the cost of the pension reserve between the employer at the time of the second or further injury and the second-injury account. The pension reserve covers only the cost resulting from the classification of a workman as totally permanently disabled, which, were it not for the statute, would be charged entirely against the employer in addition to charges previously assessed. It necessarily follows, therefore, that the phrase 'accident cost rate' as used in the statute above quoted refers only to the accident cost to be assessed as a result of such total, permanent disability classification, that is, such additional charges as would be assessed for permanent disability at the time the workman is classified as totally, permanently disabled.
Mitchell at 5-6.
The provision of medical benefits after a pension award is discretionary to the director. It is not an anticipated cost that is built into the pension reserve. To pay the cost of the ongoing benefits from [8] the pension reserve would deplete the funds placed in the reserve to cover the cost of the pension over the life of the worker. If the employer were a state fund employer, the Department would pay the cost of the ongoing medical benefits from the medical aid fund, not the supplemental pension reserve fund. The self-insured employer stands in the shoes of the Department with respect to payment of medical benefits and must likewise pay the cost of Ms. Boudon's ongoing psychiatric care.
1. On June 25, 1989, the Department received an application for benefits from the claimant, Crella J. Boudon, alleging an industrial injury on June 19, 1989, to her back during the course of her employment with The Boeing Company.
On August 30, 1989, the Department issued an order allowing the claim for treatment and benefits and noting that payment of time loss compensation had been reported by the self-insured employer.
On June 25, 1998, the Department issued an order that stated that the injury had resulted in a fixed stage and caused total permanent disability. Accordingly, the Department classified the claimant and placed her on the pension rolls effective July 20, 1998, and allowed authorized treatment to continue for the claimant's anti-depressant medication and medical monitoring thereof.
On June 25, 1998, the Department issued an order noting that by its separate order, the Department had placed the claimant on pension rolls as a totally permanently disabled worker effective July 20, 1998, and that the permanent partial disability proximately caused an industrial injury would have resulted in an amount of $36,000. The order further noted that when disability is combined with and superimposed upon prior disabling conditions, the classification of total permanent disability resulted. Therefore, the Department ordered the self-insured employer to submit to the Department of Labor and Industries the amount of $36,000 as a check payable to the Department of Labor and Industries and that the balance of the pension reserve required for paying the worker's pension would be charged against the second account.
On August 24, 1998, the self-insured employer's Notice of Appeal was filed with the Board of Industrial Insurance Appeals concerning the Department orders of June 25, 1998. On October 13, 1998, the Board issued an order granting an appeal in this matter from the June 25, 1998 Department order regarding second injury fund and pension reserve [9] balance, assigning Docket No. 98 17459, and directing that further hearings be conducted on the merits.
On December 13, 1999, the Board issued a further order assigning Docket No. 99 22359 to the June 25, 1998 Department order placing the claimant on the pension rolls effective June 30, 1998, and allowing authorized treatment to continue for the claimant's anti-depressant medication and medical monitoring thereof.
2. On June 19, 1989, during the course of her employment as an encapsulator with The Boeing Company, Crella J. Boudon injured her low back when she bent over to lift a 5-gallon can of Ketone.
3. Prior to her industrial injury on June 19, 1989, the claimant received treatment for low back and left lower extremity difficulties that were best described as of August 1988 as Category 3 for permanent dorsolumbar and lumbosacral impairment.
4. The claimant had experienced a history of child abuse and had symptoms of post-traumatic stress disorder as a result of these sexual and emotional abuses. This disorder had not resolved as of June 19, 1989, and had interfered with her ability to function, contributing to her psychological pain and emotional distress.
5. Ms. Boudon was 49 years old on the date of her industrial injury, last worked at The Boeing Company on April 1, 1994, and has not been employed in any job since that date.
6. On November 28, 1989, the claimant commenced treatment by St. Elmo Newton, III, an orthopedist. The claimant's physical condition, proximately caused by her industrial injury of June 19, 1989, has been medically fixed and stable since June 1, 1996.
7. Between June 1, 1996 and February 24, 1997, the claimant continued to receive psychiatric treatment for her psychiatric condition and pain symptoms caused by the industrial injury. Her mental health condition was medically stable as of February 24, 1997.
8. During the period from December 11, 1997 to January 13, 1998, the self-insured employer provided vocational services on behalf of the claimant in the form of a vocational assessment, which was reasonably intended to evaluate and enhance her ability to return to work. The earliest date on which those services could have been determined to be unlikely to benefit the claimant was January 13, 1998.
9. As of January 13, 1998, the claimant was totally, permanently disabled as a result of the combination of her physical limitations, psychiatric problems, and pain symptoms proximately caused by her industrial [10] injury of June 19, 1989, in view of her age, education, employment experience, transferable skills, and physical limitations.
10. After January 13, 1998, the claimant experienced significant difficulties of chronic pain, sleep deprivation, concentration, and depressed mood that affected her ability to function. Despite the use of medication, there was no improvement in her mental condition of January 13, 1998.
11. As of January 13, 1998, the claimant was totally and permanently disabled due to the combined effects of her industrial injury of June 19, 1989, superimposed upon her preexisting low back and psychiatric disorders. In the absence of her preexisting conditions, the claimant's industrial injury alone would not have been sufficient to render her totally and permanently disabled.
It so ORERED.
Dated this 26th day of January, 2000.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/________________________________________
THOMAS E. EGAN Chairperson
/s/________________________________________
FRANK E. FENNERTY, JR. Member
/s/________________________________________
JUDITH E. SCHURKE Member